Regulation Notice - Court Appeal Claire Pollard Deputy Chief - PowerPoint PPT Presentation

Regulation Notice - Court Appeal Claire Pollard Deputy Chief Inspector (Science & Strategy) Drinking Water Inspectorate, England & Wales October 2013

Private Water Supplies in England & Wales • Relevant legislation : – The Private Water Supplies Regulations 2009 – England – The Private Water Supplies (Wales) Regulations 2010 – Both transpose requirements of the EC Drinking Water Directive 98/83/EC – The Water Industry Act 1991 as amended in 1999 • Arrangements in England & Wales: – Local authorities are responsible for implementing the PWS Regulations [the regulators] – DWI provides technical advice & support to Local Authorities • 1% of the population in England & Wales served by private supplies October 2013

Local authority enforcement powers • Regulation 18 [PWS regulations 2009]: – Where a private water supply is considered to be a potential danger to human health – Powers are a duty • Section 80 Notice [Water Industry Act 1991] – Where the private water supply is unwholesome but is not a potential danger to human health and/or – Where there is a risk of lack of sufficiency of a private water supply – Powers are discretiona l October 2013

Regulation 18 Notices 18. — (1) If any private supply of water intended for human consumption constitutes a potential danger to human health, a local authority acting under these Regulations must serve a notice under this regulation on the relevant person (as defined in section 80 of Water Industry Act) instead of a notice under that section. (2) The notice must — (a) identify the private supply to which it relates; (b) state the grounds for serving the notice; (c) prohibit or restrict the use of that supply; (d) specify what other action is necessary to protect human health. (3) The local authority must promptly inform consumers of the supply of the notice and provide any necessary advice. (4) The notice may be subject to conditions and may be amended by further notice at any time. (5) The local authority must revoke the notice as soon as there is no longer a potential danger to human health. (6) It is an offence to breach a notice served under this regulation or fail to comply with it. October 2013

Regulation 18 Notices • Regulation 18 Notices can be served on any or all relevant persons – as defined in s80 of Water Industry Act 1991 – owners/occupiers of premises – any person who owns land where the water source is situated – any other person who exercises powers of management or control • A Notice can set out anything that is necessary to deliver short, medium and long term actions • Two cases have set precedent where appeals have failed & courts have upheld Notice October 2013

Regulation 19 - Appeals Appeals 19. — (1) Any person who is aggrieved by a notice served under regulation 18 may appeal to a magistrates’ court within 28 days of service of the notice. (2) The procedure on an appeal to a magistrates’ court under paragraph (1) is by way of complaint, and the Magistrates’ Courts Act 1980 applies to the proceedings. (3) A notice remains in force unless suspended by the court. (4) On an appeal, the court may either cancel the notice or confirm it, with or without modification. October 2013

Regulation 20 - Penalties Penalties 20. — (1) A person failing to comply with a notice served under regulation 18 is liable — (a) on summary conviction, to a fine not exceeding the statutory maximum or to a term of imprisonment not exceeding three months or both, or (b) on conviction on indictment, to a fine or to imprisonment for a term not exceeding two years or both. (2) Where a body corporate is guilty of an offence under these Regulations, and that offence is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of — (a) any director, manager, secretary or other similar person of the body corporate; or (b) any person who was purporting to act in any such capacity, that person is guilty of the offence as well as the body corporate. (3) For the purposes of paragraph (2) above, “director”, in relation to a body corporate whose affairs are managed by its members, means a member of the body corporate. October 2013

Appeal case - Background information • Two sources(well and borehole) and distribution system feeding the premises (land & buildings) • Premises is a historic building open to the public and used for re- enactment events • Filter on the borehole for manganese removal (following failures of the standard and previous regulatory action by LA) • UV treatment installed prior to the kitchen being used for food preparation for tea rooms etc - combined water from well & borehole • Historic sampling showed presence of coliforms and E.coli particularly on the well source. Owner advised not to use the well for supply to the public. • Following introduction of the regulations, a risk assessment was carried out on the borehole (on assumption well not in use) • A number of improvements were identified as being required to borehole (sealing head works etc) October 2013

Diagram of supply arrangements at time of risk assessment Home Tea room kitchen Upstairs UV filter function kitchen New Tea room kitchen Well Stable yard toilets Borehole Manganese Public filter toilets October 2013

Borehole head works October 2013

Background info (2) • On further investigation, it was found that the well was still in use • On further risk assessment, the well cover was found not to be water tight and stagnant water had pooled in the access area. • There was clear evidence of sheep grazing in the vicinity (no fencing allowed around the well as the premises is listed) and rabbit droppings on the well lid • The manganese filter had not been operating effectively (insufficient capacity unit installed) • As a consequence, manganese deposits had passed through the filter and settled on the UV lamps masking efficacy of UV treatment • Regulation 18 Notice served on grounds supply was a risk to human health. October 2013

Well lid plus rabbit droppings October 2013

UV filter October 2013

Details of the Notice • Immediate short term actions to restrict the use of the supply: – All water intended for drinking, cooking and food preparation to be boiled or an alternative supply provided – Display signage where members of public have access that water not to be used for drinking • Medium to long term actions to improve both sources (by specific deadline): – Provide water tight cover to well & upgrade concrete apron to prevent water pooling or some other form of barrier to prevent surface water intrusion – Programme of inspection & maintenance for UV treatment – Capping of borehole casing to prevent ingress by rodents & other contamination – Prepare a water safety plan for the site to include schematics, planned maintenance of the supply system & emergency plan in the event the October 2013 supply fails or is contaminated.

Grounds for appeal by owner • Notice was challenged by owners on basis of: – Validity of the Notice on basis it did not refer specifically to the two different sources (referred to by owner as two different supplies) – As the notice did not specifically refer to either the well or the borehole, it had no effect – The grounds for serving the notice had not been set out by the LA – No evidence that supply is or ever has been ‘harmful to health’ based on satisfactory results for resamples (following initial sample failures) – Actions set out in the Notice were disproportionate to the risk • Additional comments from owner: – LA was “scaremongering” in serving a Notice that states the supply is unsafe • Appeal was heard in Magistrates Court October 2013

Defence of the Local Authority in court • The Notice was valid despite there being two sources as the water supply comprises entire supply system including all sources and assets used to distribute water to the point of use [working definition] • The grounds for serving the Notice had been clearly set out • Reliance on samples not acceptable as they are only representative of the quality at that time of sampling • Samples alone do not guarantee water is safe to drink • Greater reliance should be placed on risk assessment • Remedial actions were necessary to mitigate against the risk to human health • Magistrates agreed with local authority position – appeal was dismissed and Notice upheld. October 2013

Regulation 18 Appeals - summary • The long standing myth that the law is not operable and magistrates will side with owners has been proven to be a just that, a myth. • The case confirmed the importance of a number of other key points in relation to the Regulations: – Working definition of a private water supply “ All physical assets used to collect, treat and distribute water from source to the consumers tap from which water is drawn for domestic purposes” – Not appropriate to rely only on sample results – Risk assessment is sufficient to demonstrate supply was a risk to human health • Role of DWI in providing advice & support (DWI acted as expert witness for the LA in court) October 2013